CC, et al v. Monroe Cty. Board, et al

Filing 130

Order, granting in part and denying in part 48 Motion for Summary Judgment as to Darenell Payne. Signed by Judge Callie V. S. Granade on 12/5/2011. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
C.C., a minor, by her parents
and natural guardians, Aretha
Andrews and Chris Andrews, et. al.,

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Plaintiffs,
v.
MONROE COUNTY BOARD OF
EDUCATION, et. al.,
Defendants.

CIVIL ACTION NO. 00-753-CG-M

ORDER
PROCEDURAL HISTORY
On August 17, 2000, the plaintiffs, RH and CC (“plaintiffs”), filed a lawsuit
against defendants, Monroe County, Alabama, Board of Education (“Board of
Education”), Darenell Payne (“Payne”), and Mike Floyd (“Floyd”), asserting that the
defendants violated their federal rights under Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”) and under the due process and
equal protection clauses of the Fourteenth Amendment to the United States
Constitution, made actionable under 42 U.S.C. § 1983. The plaintiffs also allege
state law claims of invasion of privacy, assault and battery, outrage, negligent
and/or wanton and malicious training, supervision, and retention, as well as false
imprisonment.

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On September 18, 2001, Payne and the Board of Education filed a motion for
summary judgment with supporting briefs and evidentiary submissions, asserting
defenses of qualified immunity from the § 1983 claims and immunity from state law
claims. (Docs. 48, 49, 52). Payne also alleged a defense of state agent immunity.
(Doc. 48, p. 2 ). The plaintiffs filed an opposing brief (Doc. 57), to which the Board of
Education and Payne filed a reply (Doc. 61). Floyd filed a separate motion for
partial summary judgment with a supporting brief (Docs. 50 and 51), which the
plaintiffs opposed (Doc. 58). Floyd also filed a reply to plaintiffs’ opposition (Doc.
62).
On September 28, 2007, this court denied Floyd’s motion in its entirety (Doc.
87, p. 36). As to the Board and Payne (in his official capacity), the court granted
summary judgment as to all § 1983 claims; granted summary judgment for Payne in
his personal capacity as to the plaintiffs’ substantive due process claim under §
1983; and granted summary judgment for the Board as to all state law claims. Id.
However, the court denied the Board’s summary judgment motion as to the Title IX
claim and the state law claim of outrage. Id. The court also denied Payne’s
summary judgment motion in his personal capacity as to the plaintiffs’ § 1983 equal
protection claim and state law outrage claim. Id. Specifically, the court held that
Payne was not entitled to qualified immunity from plaintiffs’ equal protection claim
because his lack of action was not within his discretionary authority as principal of
plaintiffs’ middle school, where a district-wide sexual harassment policy was in
place. Id. Payne thereafter appealed.

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The Court of Appeals for the Eleventh Circuit reversed this court’s denial of
Payne’s motion as to the § 1983 equal protection claim, finding that Payne’s lack of
action was, in fact, within his discretionary authority. (Doc. 103). The Eleventh
Circuit then remanded the case for analysis of the second part of the qualified
immunity test, i.e., to determine whether the plaintiffs demonstrated that Payne’s
lack of action violated clearly established constitutional law as provided in Saucier
v. Katz, 533 U.S. 194, 201 (2001). Id.
On remand, the court once again found that Payne was not entitled to
qualified immunity, this time because the plaintiffs introduced evidence sufficient
for a jury to reasonably find that Payne, by not acting in accordance with the
school’s sexual harassment policy, was deliberately indifferent to Floyd’s alleged
sexual molestation of plaintiffs, giving rise to supervisory liability under § 1983 for
a violation of plaintiffs’ equal protection rights. (Doc. 110, pp. 12-17). The court
also found that the plaintiffs’ equal protection rights were “clearly established at
the time of the alleged misconduct” in January and May of 2000. Id. at pp. 17-21).
Payne appealed a second time.
On this second appeal, the Eleventh Circuit vacated and remanded the
court’s order in light of the fact that the United States Supreme Court’s decision in
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), was issued after briefing in this case had
closed but before the court entered its summary judgment order. (Doc. 123, p. 8).
The Eleventh Circuit instructed this court to reconsider the summary judgment
order on the equal protection claim in light of Iqbal. Id.

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THE SUPREME COURT’S HOLDING IN ASHCROFT v. IQBAL
In Iqbal, the Supreme Court ruled that allegations of unconstitutional
violations involving discrimination require a showing of discriminatory intent by
each defendant and held that “the term ‘supervisory liability’ is a misnomer.” Iqbal
at 1949. The case involved a Pakistani Muslim who was arrested on criminal
charges in New York City shortly after the September 11, 2001, terrorist attacks
and detained by federal officials under harshly restrictive conditions. Id. at 1942.
Iqbal sued pursuant to § 1983, alleging that he had been unconstitutionally
mistreated because of policies put in place by various government officials,
including then-Attorney General John Ashcroft and FBI Director Robert Mueller.
Id. In addition to its in-depth discussion of the pleading standards necessary to
survive a motion to dismiss, the Iqbal court discussed the substance of what a §
1983 plaintiff must plead in order to overcome a defense of qualified immunity. Id.
at 1949-50. Because vicarious liability is inapplicable to § 1983 suits, the court held
that a plaintiff must “plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution,” rather than assert
that the higher-ranking officials were subject to supervisory liability. Id. at 1948.
Thus, when a plaintiff claims that an alleged constitutional violation involved
“invidious discrimination,” such as a breach of plaintiff’s equal protection rights, the
plaintiff “must plead and prove that the defendant acted with discriminatory
purpose.” Id. (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,
540-41 (1993)) (other citations omitted).

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With this holding in mind, then, the task for this court is to determine
whether the plaintiffs have shown facts sufficient for a reasonable jury to conclude
that Payne’s alleged inaction and failure to investigate claims of sexual abuse
against the plaintiffs was due to his purposeful discrimination against female
students.1 In other words, the court must determine whether the alleged failure to
investigate was “a course of action [taken] ‘because of,’ not merely ‘in spite of,’ [the
action’s] adverse effects upon an identifiable group,” in this case, girls. Id.
EQUAL PROTECTION -- DISCRIMINATORY INTENT
The core of any equal protection case is a showing of intentional
discrimination. Batson v. Kentucky, 476 U.S. 79, 90 (1986). As a general matter, a
single discriminatory act against one individual can amount to intentional
discrimination for equal protection purposes. Id.; Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 266 n. 14 (1977). An equal
protection plaintiff therefore need not prove a discriminatory policy against an
entire class; discrimination against the plaintiff because of his or her membership
in the class is by itself enough. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152
(1970). “Evidence of a pattern or practice of discrimination, however, is of course
strong evidence supporting a plaintiff's claim that she herself has been the victim of
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The plaintiffs argue that the intentional discrimination at issue in this case was based
upon their gender. (Doc. 125, p. 18). Plaintiffs also make the baffling argument in their postremand sur-reply that the alleged discrimination was based upon their “sex,” meaning “the actual
act and conduct of ‘sex’ as a verb.” (Doc. 129, p. 6). The court disregards this second argument
as nonsensical. There is no precedent that the court is aware of, nor that the plaintiffs have
offered, which suggests that discrimination in an equal protection context is capable of being
based on the act or conduct of sexual activity.

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discrimination.” Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1187 (7th Cir.
1986).
Payne argues in his post-remand brief that the plaintiffs’ Amended
Complaint fails to allege that he intentionally discriminated against them on the
basis of their gender, and points out that the Amended Complaint does not even
make mention of his intent. (Doc. 126, p. 5). Payne also argues that the evidence
does not establish that he responded to female students’ allegations of abuse any
differently than that of a male student, JH’s, allegation of abuse. (Doc. 126, pp. 67). Therefore, Payne argues, under Iqbal, the plaintiffs have failed to state a claim
such that they are entitled to relief for an equal protection violation. (Doc. 126, pp.
5-6).
Plaintiffs assert that “it is the substance of statements that is paramount,”
id., and that “[p]laintiffs’ Amended Complaint alleges facts which demonstrate
Payne’s culpability, including facts regarding Payne’s express knowledge of the
abuse and his intent to cover up the abuse, which allowed the abuse to continue.”
(Doc. 125, p. 2). The plaintiffs argue further that Payne has said little about the
effect of Iqbal on this case, and instead, is fixated on the fact that the word “intent”
does not appear in the Amended Complaint. (Doc. 129, p. 3).
The allegations of the Amended Complaint, and the significant corpus of
evidence produced over the course of the discovery period in this case, in the form of
deposition testimony and affidavits, tend to show the following: Payne did not
remove RH from Floyd’s class after he learned of her allegations against Floyd

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because RH’s mother stated that she did not want her daughter removed. (Doc. 58,
Vol. 2, Tab 14, Payne depo. p. 31). Payne did not conduct a formal investigation in
response to RH’s and JH’s allegations of sexual molestation, as required by the
School Board’s sexual harassment policy. (Doc. 58, Vol. 2, Tab 14, Payne depo. pp.
38-39, pp. 44-45). Payne did not conduct a formal investigation in response to KM’s
allegations of sexual molestation by Floyd. (Doc. 58, Vol. 2, Tab 14, Payne depo., p.
53). Payne did not present a written report regarding the results of the
investigation (because no formal investigation took place). (Doc. 58, Tab 14, Payne
depo. p 45). Payne did not temporarily suspend Floyd pending a formal
investigation into the allegations of sexual molestation. (Doc. 58, Vol. 2, Tab 15,
Floyd depo. pp. 152-153). Payne denied to RH’s mother that Floyd sexually abused
students without conducting a formal investigation. (Doc. 58, Vol. 2, Tab 11, RH
Depo., pp. 101-102). Payne urged RH’s mother not to pursue the matter (“Ms.
Murphy, drop it.”) (Doc. 58, Vol. 2, Tab 13, Murphy depo., p. 46). Payne did not
inform the superintendent of the RH’s, JH’s, KM’s, or CC’s allegations against
Floyd. (Doc. 58, Vol. 2, Tab 14, Payne depo. pp. 44-45). Payne did not inform
parents in writing of the School Board’s response to the complaints against Floyd.
Id.
The court finds that this evidence is not sufficient for a reasonable jury to
conclude that Payne purposefully discriminated against the plaintiffs because they
are female. As Payne points out, one of the four students allegedly molested by
Floyd, JH, was male. (Doc. 126, p. 6). Yet there is no allegation, nor any evidence,

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that Payne acted any more diligently or decisively with regard to JH’s allegation of
abuse than with regard to the plaintiffs’ allegations. This is an admittedly low bar
by which to judge Payne’s conduct. But, where Iqbal requires “purpose rather than
knowledge” in order to overcome qualified immunity, Iqbal at 1949, the court finds
the converse: knowledge, but no purpose. This want of factual allegations as to
Payne’s purposeful, discriminatory intent against female students based upon their
gender compels the court to find that Payne is entitled to qualified immunity with
regard to the § 1983 equal protection claim only.
DEFENDANT’S SUMMARY JUDGMENT ARGUMENT REGARDING
PLAINTIFFS’ STATE LAW CLAIM OF OUTRAGE
Payne previously attempted to argue for summary judgment on the merits of
the plaintiffs’ state law claim of outrage asserted against him in his individual
capacity. (Doc. 61, p. 14). However, Payne first presented this argument in his
reply brief rather than in his summary judgment motion. (Doc. 87, p. 33). The
court concluded that Payne had not properly raised the issue, and denied summary
judgment in his favor. Id. at pp. 33-34. Payne now argues that, because the
Eleventh Circuit stated that its June 29, 2011, remand was unlimited, he is entitled
once again to argue for summary judgment on the merits of the state law outrage
claim. (Doc. 126, p. 12).
The court notes that Payne has cited no authority to support the notion that
an unlimited remand allows him to resurrect an argument previously rejected by
the district court as not properly raised. Furthermore, the Eleventh Circuit’s
unlimited remand addressed the court’s November 25, 2009, summary judgment
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order, which, in turn, was focused exclusively on the § 1983 equal protection claim
and qualified immunity defense. See Doc. 123, p. 8; see also Doc. 110. There is
nothing to suggest, post-remand, that the Eleventh Circuit has rendered timely
what was once an untimely argument. This court has observed previously the
importance of not allowing parties to “treat their initial summary judgment motions
as a ‘dry run’ which they would have an opportunity to redo or supplement—at
considerable additional cost to opposing parties and at a considerable drain to
scarce judicial resources—via a new Rule 56 motion later on to correct any
deficiencies identified by opposing counsel or the court in processing the initial
motion.” Middlegate Development, LLP v. Beede, 2011 WL 3475474, *11 n.26
(S.D.Ala. Aug. 9, 2011) (citation omitted). Although Payne has not presented an
entirely new summary judgment motion, his attempt to revisit the outrage claim
where the court previously identified its deficiencies falls into the same category.
Courts “do not approve in general the piecemeal consideration of successive motions
for summary judgment because parties ought to be held to the requirement that
they present their strongest case for summary judgment when the matter is first
raised.” Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554
(S.D.N.Y. 2004) (citing Allstate Finance Corp. v. Zimmerman, 296 F.2d 797, 799
(5th Cir. 1961) (quotations omitted). Thus, the court, in its discretion, declines to
revisit its denial of summary judgment in Payne’s favor on the merits of the
plaintiffs’ state law claims of outrage.

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Accordingly, for the reasons enumerated above, the court finds that Payne’s
motion for summary judgment (Doc. 48) is due to be GRANTED with regard to the
§ 1983 equal protection claim only. Summary judgment is DENIED with regard to
the merits of plaintiffs’ state law claim of outrage against Payne in his individual
capacity. As a result, the following causes of action remain to be tried:
Against defendant Board:

Title IX and Outrage

Against defendant Payne:

Outrage

Against defendant Floyd:

§ 1983/Individual Capacity/Substantive Due
Process
§ 1983/Individual Capacity/Equal Protection
Invasion of Privacy
Assault and Battery
Outrage
False Imprisonment

DONE and ORDERED this 5th day of December 2011.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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